JAVIER MEDINA, Plaintiff and Appellant, v. GEICO INDEMNITY COMPANY, Defendant and Respondent.
No. F072548
Court of Appeal, Fifth District, California
Feb. 8, 2017
251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266
Law Offices of Young Wooldridge and Thomas A. Brill for Plaintiff and Appellant.
Tharpe & Howell, Charles D. May and Eric B. Kunkel for Defendant and Respondent.
Opinion
GOMES, J.—Leigh Anne Flores was involved in an accident while driving a van her employer, Pacific Bell Telephone Company, had furnished to her to
Flores had insurance for her personal car through GEICO Indemnity Company. The GEICO policy provided coverage for her use of a “nonowned” vehicle, but not if the nonowned vehicle was “furnished for [her] regular use.” Flores tendered defense of the underlying action to GEICO, but GEICO refused to defend or indemnify her. Flores assigned any rights she had against GEICO to Medina in exchange for a covenant not to execute against her personal assets. After GEICO refused to pay the judgment Medina obtained based on the arbitrator‘s award, Medina filed this lawsuit against GEICO for breach of contract, bad faith, and declaratory relief.
GEICO brought a summary judgment motion based, in part, on the ground that there was no coverage under its policy because the van was furnished to Flores for her regular use. The trial court granted the motion, finding as a matter of law there was no coverage under the nonowned auto clause since Flores had nearly unlimited use of the van.
On appeal, Medina argues the van was not furnished for Flores‘s regular use at the time and place of the accident because it was furnished to her primarily for business use and she was on a personal mission at the time. We conclude that under the circumstances of this case, since Flores was able to use the van for both business and personal purposes, and her personal use of the van at the time of the accident was not a departure from its customary use, the van was furnished to Flores for her regular use and there is no coverage under the GEICO policy. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Flores worked for Pacific Bell as a facility specialist; at the time of the accident she had been a Pacific Bell employee for 18 years. Flores worked out of a Pacific Bell home office (home office), which was located first in Madera and later in Fresno, and traveled to AT&T and Pacific Bell “central offices” throughout the San Joaquin Valley and into the Mojave Desert, where she inventoried working and nonworking equipment. Since Flores‘s job
When Flores was working in Fresno, she drove her personal car to and from the Fresno home office, where she picked up the van and used it during her workday. When traveling out of town for work, Flores drove her personal car to the Fresno home office on Monday morning, where she switched vehicles, picked up her equipment, loaded the van, and drove to her destination. Once there, she checked into a motel room and went to work. On Friday, she drove back to the Fresno home office, either first thing in the morning or at lunchtime, and picked up her personal vehicle.1 Flores never took the van home overnight. When she was on out-of-town assignments, she always returned to the home office at the end of the week; it never occurred to her to keep the van over the weekend in whatever city she was working in, as she never stayed over the weekend.
Pacific Bell did not place any restrictions on Flores‘s use of the van during the workday. Flores‘s supervisor, Greek, did not specifically discuss any limitations regarding the van‘s use when he initially obtained it for Flores, including its use while on out-of-town work assignments. When she worked in Fresno, Flores used the van to drive home for lunch and to run errands, such as to the bank and shopping. No one told her she had to use her personal car if she wanted to go home for lunch, or that she was not allowed to use the van to go to the bank or shopping; she also was not told there was a limit on how far from the home office she could travel in the van. She always used the van for personal errands if she was working in Fresno, and was never told she could not do so. Greek knew she used the van for personal purposes.
With respect to out-of-town assignments requiring an overnight stay, Pacific Bell imposed no restrictions on her use of the van outside of work hours. When Flores was stationed in Bakersfield, Pacific Bell authorized her to use the van for personal errands to destinations away from Bakersfield. No one from Pacific Bell told Flores she could use the van to only go from the
According to Greek, employees were instructed that during a week‘s stay at an out-of-town location, a company vehicle could be used to get food, and to travel between their work and lodging, but employees were not specifically told whether they were allowed to use the vehicle for other purposes. While Greek testified employees could drive to the supermarket or a movie if it was within the local area, he did not personally tell Flores her use of the van was so limited, he did not tell employees before the accident what would constitute local versus nonlocal driving areas, and he did not know whether his employees were aware of this distinction; instead, he believed it was a matter of “common sense.” No one discussed with Flores whether she was allowed to run errands, go to the movies, or do something on her off hours while working out of town, and she was not told there was a limit on how far she could travel in the van after concluding her workday.
During the two years Greek supervised Flores, Flores traveled to some 40 to 50 central offices outside of Fresno to perform inventory work. On these trips, the van was her only means of transportation. Flores estimated that during the last six months of her employment, she spent 80 percent of her time on overnight trips.
In August 2009, Flores was assigned to work out of the Bakersfield office. She drove the van to Bakersfield on a Monday and worked there through Thursday of that week. On Thursday, August 13, 2009, Flores received a call from her daughter, who had a problem with a pet and needed money to address it. Since Flores was in Bakersfield and her daughter lived in Fresno, they arranged to meet somewhere between the two cities so Flores could give her daughter money. While Flores was traveling on State Route 99, she was involved in an accident with Medina, who was injured. Pacific Bell later concluded that Flores had left to meet her daughter before 3:30 p.m., during work hours. Flores, who had a couple of glasses of wine with her lunch that day, was intoxicated at the time of the accident.
Flores did not speak to anyone at Pacific Bell before she left to meet her daughter and did not think she needed to do so, since she planned to return to Bakersfield to work. Moreover, no one from Pacific Bell told her she was not allowed to take the van to go home if she had a personal emergency. Flores, who ultimately lost her job, believed she would have kept it had she not been drinking, as she had Pacific Bell‘s implicit permission to take the van and the van had been assigned to her for her regular use.
Medina filed a personal injury action against Pacific Bell and Flores in July 2011. Pacific Bell, which self-insured its company cars, including the van, refused to defend or indemnify Flores. While Pacific Bell conceded Flores was operating the van with its permission within the meaning of the financial responsibility laws, it asserted she was not acting in the course and scope of her employment at the time of the accident, and therefore it did not have enterprise liability for Medina‘s injuries under respondeat superior principles. Accordingly, Pacific Bell offered Medina $15,000, which was its statutory liability for permissive use of its vehicle.2
Flores had insured her personal vehicle through GEICO, but she did not initially notify GEICO of the accident because she believed Pacific Bell would cover the losses as she was driving the van on an out-of-town work assignment.3 Flores‘s attorney tendered defense of the underlying action to GEICO in September 2012.
The policy GEICO issued for Flores‘s personal vehicle does not identify the van as an insured automobile. The GEICO policy, however, provides coverage for bodily injury or property damage arising out of the use of a “non-owned auto,” which the policy defines, in pertinent part, as “an automobile ... not owned by or furnished for the regular use of either you or a relative ....” The GEICO policy excludes from coverage accidents involving the use of a nonowned auto while the person using it is “employed or otherwise engaged in ... any ... business or occupation of any insured if the accident arises out of that business or occupation ...” (the business use exclusion).
GEICO investigated the circumstances of the loss and learned Pacific Bell owned the van. Based on information it obtained from a letter from Pacific Bell‘s attorney and a police report, GEICO concluded there was no coverage
In August 2013, Flores assigned any rights she had against GEICO to Medina in exchange for a covenant not to execute against her personal assets. She and Medina agreed to enter into binding arbitration in the underlying action. Flores represented herself at the arbitration and stipulated to liability. The arbitrator found Flores liable for the accident and awarded Medina over $500,000 in damages. He also found that Flores had Pacific Bell‘s actual and implied consent to use the van at the time of the accident as (1) Flores was an 18-year employee who had been assigned the van for out-of-town assignments for the three years before the accident, and (2) Pacific Bell never imposed restrictions on Flores‘s use of the vehicle outside of work hours when she was assigned to work out of town. The arbitrator noted that Flores testified at the arbitration she asked Pacific Bell for permission to use her personal vehicle on out-of-town trips, but Pacific Bell refused.4 The trial court entered the arbitrator‘s award as the judgment in the underlying action in February 2014.
This Lawsuit
Medina forwarded the judgment to GEICO and demanded payment, but GEICO declined and advised Medina there was no coverage for the accident. Medina filed this suit against GEICO in April 2014. Medina alleged in his second amended complaint causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, recovery of the policy limit under the GEICO policy pursuant to
GEICO filed a motion for summary judgment, in which it contended there was a complete defense to Medina‘s claims against it because the GEICO policy did not afford coverage for his claims against Flores. Specifically, GEICO argued there was no coverage because (1) the van was furnished to
In opposing the motion, Medina did not dispute any fact material to coverage; of the 91 material facts he disputed only two—the exact date Flores‘s attorney tendered the underlying action to GEICO and the admissibility of a statement Flores made to the GEICO claims examiner.5 In his own separate statement of material facts, Medina offered evidence that Flores did not take the van home after her shifts in Fresno, and she picked up and returned the van to the Fresno office when she went on out-of-town assignments.
Medina argued the regular use exception did not apply because the term “regular use” encompassed only the vehicle‘s primary use, not some incidental use, and here it was undisputed the van‘s primary use was for business purposes, while Flores‘s family emergency was an incidental use. He further argued that because Flores did not have the vehicle on weekends or during the evening, except when she was out-of-town, she did not have unrestricted access to the vehicle at all times and for all purposes. Medina contended the business use exclusion did not apply since the court in the underlying action found she was not in the course and scope of her employment at the time of the accident.
Following oral argument on the motion, the trial court took the matter under submission. The trial court subsequently issued a minute order in which it granted the summary judgment motion as: (1) GEICO submitted evidence the loss was not covered by its policy under the nonowned auto clause since Flores had nearly unlimited use of the van; (2) this shifted the burden to Medina to show the van‘s use was not unlimited and thereby create a triable issue of material fact; and (3) Medina failed to satisfy this burden, since the only evidence he offered was that Flores did not take the van home after her shifts in Fresno, which did not limit her use enough to place the van under the policy‘s coverage. The trial court sustained Medina‘s objection to
DISCUSSION
Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (
“An insurer may ‘seek[ ] summary judgment on the ground the claim is excluded,’ in which case it has ‘the burden ... to prove that the claim falls within an exclusion. [Citation.]’ [Citation.] To satisfy its burden, an insurer need not ‘disprove every possible cause of the loss’ and once the insurer establishes the claim is excluded, the burden shifts to the insured to show a triable issue of material fact exists.” (Roberts v. Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1406 [78 Cal.Rptr.3d 361] (Roberts).) “In contrast, ‘[a]n insured has the burden of proving its claim falls within the scope of the policy‘s basic coverage, even where the insurer brings a motion for summary judgment.’ ” (Gonzalez v. Fire Insurance Exchange (2015) 234 Cal.App.4th 1220, 1230 [184 Cal.Rptr.3d 394], citing Roberts, supra, 163 Cal.App.4th at p. 1407.) Thus, when an insurer meets its initial burden on summary judgment of showing there is no coverage under the policy, the burden shifts to the insured to show a triable issue of material fact as to
The parties disagree about whether the nonowned auto provision is part of the GEICO policy‘s insuring clause defining the coverage or is an exclusion clause. We need not resolve the issue because the distinction is principally relevant to the burden of proof. Here, as we discuss below, GEICO discharged the burden of proving the van, by reason of its “regular use,” is outside the policy‘s coverage, and Medina failed to create a triable issue of fact on that issue. (See Kindred v. Pacific Auto. Ins. Co. (1938) 10 Cal.2d 463, 466 [75 P.2d 69] (Kindred).)
The Nonowned Auto Provision
Medina asserts the sole issue for our determination is whether the facts, which he admits are undisputed, establish “regular use” and therefore exclude coverage under the GEICO policy. Medina maintains the trial court erroneously found the GEICO policy did not afford coverage on the van because it ignored the controlling case law regarding “regular use” of vehicles.
The provision at issue is contained in section 1 of the GEICO policy, which addresses “Liability Coverages.” Under the subheading “Losses We Will Pay For You:” the policy states: “Under Section 1, we will pay damages which an insured becomes legally obligated to pay because of: [¶] 1. bodily injury, sustained by a person, and [¶] 2. damage to or destruction of property, [¶] arising out of the ownership, maintenance or use of the owned auto or a non-owned auto. . . .” The policy defines “non-owned auto” as “an automobile or trailer not owned by or furnished for the regular use of either you or a relative, other than a temporary substitute auto. An auto rented or leased for more than 30 days will be considered as furnished for regular use.”7
Thus, the GEICO policy covers a car Flores owned or one she used as a temporary substitute for a car she owned. If a car was not owned by her and was not being used as a temporary substitute vehicle, but instead was furnished to her for her regular use, it was excluded from coverage under the GEICO policy. (Highlands Ins. Co. v. Universal Underwriters Ins. Co. (1979) 92 Cal.App.3d 171, 174-175 [154 Cal.Rptr. 683] (Highlands) [interpreting similarly worded policy].) Here, Flores did not own the van and she was not using it as a temporary substitute vehicle. Accordingly, the van was excluded from coverage under the GEICO policy if it was “furnished for [her] regular use.”
The interpretation and application of the phrase “furnished for regular use” was first addressed in Pacific Auto. Ins. Co. v. Lewis (1943) 56 Cal.App.2d 597 [132 P.2d 846] (Lewis). There, the policy stated coverage did not apply when the insured was driving another automobile “furnished for regular use to the named insured.” (Id. at pp. 598-599.) The issue was whether there was coverage under the policy where a car salesman, who had access to his employer‘s demonstrator cars which he sometimes drove for his personal use in the San Diego area, obtained special permission to drive the car to Pomona on a personal matter and was involved in an accident on the way. (Id. at pp. 598-600.)
Citing Kindred, the court stated that ” ‘regular use’ reasonably suggests a principal use, as distinguished from a casual or incidental use.” (Lewis, supra, 56 Cal.App.2d at p. 600.) The court explained that even if the salesman did not have exclusive use of the car, other elements may be considered in determining the policy‘s intended meaning: “Whether an automobile is furnished by another to an insured for his regular use may reasonably depend upon the time, place and purpose for which it is to be used. One furnished for all purposes and at all times and places would clearly be for his regular use. One furnished at all times but strictly for business purposes alone could hardly be said to have been furnished for his regular use at a time and place when it was being used for personal purposes. It may be assumed that when a car is furnished all of the time for business purposes, with permission to use the same for incidental personal purposes, all within a certain area, the car might be said to be furnished for regular use within that area. But when a car thus furnished for such a use is driven to a distant point on one occasion, with the special permission of the one furnishing the car, that particular use would hardly seem to be a ‘regular use’ of the car. It cannot be said, as a matter of law, that such a use on a particular occasion, which is a departure from the customary use for which the car is furnished, is a regular use within the meaning of these clauses of the policies.” (Id. at pp. 600-601.)
As shown in Lewis, the elements to consider in determining whether a car was furnished for regular use “include time, place and manner of use, purpose or type of use, and restrictions on use. Primarily, the issue presents a question of fact which requires an interpretation of the language of the policy to the facts involved.” (Highlands, supra, 92 Cal.App.3d at pp. 175-176.)
Relying on Kindred and Lewis, courts have found that a vehicle was not furnished for regular use where (1) the insured regularly used his brother‘s truck to drive to and from work, but never for personal purposes until the night of the accident (Comunale v. Traders & General Ins. Co. (1953) 116 Cal.App.2d 198, 202 [253 P.2d 495]); (2) a son used his father‘s car only on special occasions and only with his father‘s permission (Juzefski v. Western Cas. & Surety Co. (1959) 173 Cal.App.2d 118, 122 [342 P.2d 928]); (3) a government car was furnished to an employee only for business purposes and the accident occurred during an isolated incident of personal use (Safeco Ins. Co. v. Thomas (1966) 244 Cal.App.2d 204, 206-207 [52 Cal.Rptr. 910]); (4) a prospective car buyer was test-driving a car on loan from the dealer for several weeks before deciding to buy it (Truck Ins. Exch. v. Wilshire Ins. Co. (1970) 8 Cal.App.3d 553, 561 [87 Cal.Rptr. 604]); and (5) a daughter‘s use of her father‘s truck was limited to specific purposes, limited in time and area, and she had to obtain her father‘s consent and keys before any use (Interinsurance Exchange v. Smith (1983) 148 Cal.App.3d 1128, 1136-1137 [196 Cal.Rptr. 456] (Smith)).
In contrast, courts have found a vehicle was furnished for regular use where (1) a daughter sold her own car and began driving her mother‘s car
Here, Medina contends the van was not furnished to Flores for her regular use because Pacific Bell furnished the van primarily for business purposes. Medina argues that Flores‘s use of the van when the accident occurred was not a regular use since she was on a personal mission. According to GEICO, however, Flores‘s use of the van was a regular use because Pacific Bell furnished the van to her for both business and personal uses, and she could use the van for whatever purposes she wanted.
We agree with GEICO. The undisputed facts show Flores had the keys to the van, which was assigned to her exclusively, and she was authorized to use it for both business and personal purposes. While Pacific Bell furnished the van to Flores because she needed it to perform her job, it did not place any restrictions on her use of it. Even if, as Medina contends, she did not have unrestricted access to the van at all times because she was required to return the van to the Fresno office at the end of her workday while working in the local area and when she returned from out-of-town business trips, Flores had unlimited use of the van when it was in her possession and the van was assigned to her for her exclusive use. When she was out of town on business, the van was her only means of transportation since Pacific Bell refused to allow her to use any other vehicle. Since she could use the van while on out-of-town trips for business and personal use, at the time of the accident she was using the van in a manner permitted by Pacific Bell and within the scope of the purposes for which the van was furnished. These facts establish that the van was furnished to Flores for both business and personal reasons, and her use of the van at the time of the accident was a regular one.
We reject Medina‘s assertion that because Flores was provided the van primarily for business purposes, her use of the van for personal purposes at the time of the accident was not a regular one. As Lewis instructs, whether a vehicle is furnished to an insured for regular use depends on the time, place and purpose for which it is to be used, and whether its use at the time of the accident was “a departure from the customary use for which the car is
The purpose of the nonowned auto provision supports our analysis in this case. The intent and function of this provision “is to prevent abuse, by precluding the insured and his family from regularly driving two or more cars for the price of one policy. The purpose of the provision is to cover the occasional use of other cars without payment of an additional premium but to exclude the frequent or habitual use of other cars, which would increase the risk on the insurer without increasing the premium of the insured.” (Highlands, supra, 92 Cal.App.3d at p. 176.) Put another way, the provision is “intended to provide coverage for occasional use of other [nonowned] cars without requiring payment of additional premiums. For obvious reasons, coverage was not intended to include the regular use of other cars because insurance companies would necessarily bear an increased risk without receiving a related increase in premiums. Specifically, the exclusion serves to prevent a situation in which the members of one family or household may have two or more automobiles actually or potentially used interchangeably but with only one particular automobile insured.” (Smith, supra, 148 Cal.App.3d at p. 1138.)
The nonowned auto provision excludes coverage for the situation before us, where a person has unlimited use of a vehicle which she drives in addition to her own for some time without paying an additional premium to her insurer. Flores‘s use of the van at the time of the accident was not an occasional use, but rather was a frequent use which increased the risk to GEICO without it receiving a related increase in premiums. Her use of the van in lieu of her own car on out-of-town business trips for both business and personal purposes shows two vehicles were available to her that could be used interchangeably, but with only her own car insured. This is the type of abuse the nonowned auto provision was intended to prevent.
Medina‘s reliance on Jurd v. Pacific Indemn. Co. (1962) 57 Cal.2d 699 [21 Cal.Rptr. 793, 371 P.2d 569] (Jurd) is misplaced. Medina claims our Supreme Court articulated a “public policy” with regard to “regular use” of favoring the provision of coverage. The court in Jurd, however, did not address the nonowned auto provision at issue here; instead, it addressed the scope of the permissive user statute, stating it reflected a legislative policy to protect
Medina urges us to adopt a liberal interpretation of the term “regular use” and find uses like Flores‘s irregular. He complains that if we do not find coverage, people like Flores will be uninsured when operating a company vehicle outside the course and scope of their employment, which means that such drivers will be prohibited from receiving compensation for pain and suffering under
As GEICO points out, whatever the merit of these claims, the employee‘s personal automobile insurer is not the party who should be responsible. Pacific Bell could have easily purchased liability coverage for Flores‘s personal, nonemployment related uses of the van, but it did not. (See Baker v. DePew (Mo. 1993) 860 S.W.2d 318, 320 [employee who had unlimited permission from employer to use employer‘s truck for business and personal use was an insured under omnibus coverage clause in employer‘s automobile policy which provided coverage to anyone using the truck with insured‘s permission].) Instead, it apparently sought to place a portion of its responsibilities onto the shoulders of its employees and their personal auto insurers. Unfortunately, Pacific Bell never told Flores that she was uninsured beyond its permissive user liability whenever she used the van for personal reasons. Had Flores known, she could have purchased insurance to cover her operation of the van in the form of an “extended non-owned automobile” endorsement to her personal auto policy. (Di Orio v. New Jersey Manufacturers Ins. Co. (1979) 79 N.J. 257, 264 [398 A.2d 1274, 1277-1278].) We see no reason to depart from the language of the GEICO policy and impose the burden on GEICO, especially where Pacific Bell and Flores could have acted to ensure coverage in this situation.
In sum, we conclude, based on the undisputed facts, that the van was furnished to Flores for her regular use and, at the time of the accident, she
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to GEICO.
Hill, P. J., and Smith, J., concurred.